Debatable defenses from James Q. Wilson

May 18, 1997|By Walter Olson | Walter Olson,SPECIAL TO THE SUN

"Moral Judgement," by James Q. Wilson Basic Books. 112 pages. In the limerick, the Young Maid From Darjeeling throws her newly born babe at the ceiling: "When asked why she did/She replied, 'To be rid/Of a strange, overpowering feeling.'"

The American courtroom might be the ideal place for the Maid to plead her case these days, with its parade of hired experts eager to diagnose compulsive traumatic syndromes and uncontrollable impulse disorders. In one case a West Virginia mother went on TV to beg for the return of her baby, which she said had been kidnapped, then confessed she'd beaten and drowned it because it wouldn't stop crying. She got off with less than two years on a voluntary manslaughter plea: Seems she'd been depressed, which as one sympathetic law-school pundit put it may have her prevented her from conforming to society's requirements' inasmuch as she felt compelled to stop the

frustration caused by the infant's wailing.

The abuse excuse hung the first Menendez jury, and related theories have surfaced in cases as diverse as those of Bernhard Goetz, Dan White, Patty Hearst, and the Los Angeles rioters. Now widely admired UCLA criminologist James Q. Wilson weighs in with a set of thought-provoking lectures whose main failing is that it masquerades as a book.

Start with the good news. "Contrary to what many suppose, there is no avalanche of abuse excuses afflicting American criminal law." Rockslides, maybe; but few cases turn on the new theories, and judges still reject such exotica as the black rage defense and urban survivor syndrome.

Nor are these issues wholly novel or distinctively American. Juries have long stretched notions of self-defense or extended implicit clemency to recognize mitigating factors such as provocation and histories of abuse. So should we stop worrying about the abuse excuse? Not at all, Wilson argues.

For starters, syndrome-mongering turns crucial issues over to dueling hired experts on each side. (Prosecutors have their own dubious experts, like one who testified there was a "one hundred percent and absolute" certainty a convicted murderer would kill again.) The idea is that relevant issues of human nature are "beyond the ken of the reasonable laymen" yet can be resolved by science. But too often one or the other premise falls down: reasonable laymen's judgments may match anyone's in accuracy, while science may offer no answers that carry real predictive rigor.

Meanwhile sympathy sneaks in the back door. Many judges have allowed abuse defenses but reject compulsive gambling syndrome. The explanation isn't that the first are scientifically rigorous: In the first Menendez trial, an expert told jurors the brothers' brains had been rewired the way, she claimed, a snail's could be. But courts just don't feel sympathy for the embezzler.

Excluding much expert testimony, as Wilson proposes, would also make for speedier justice. "In England the average criminal trial in 1982 took only about one day, while in Los Angeles the average one took about five days (up from three days in 1953)."

Though full of cogent observations, the book isn't the best introduction to Wilson's work for the newcomer, nor is it a definitive overview of its complex subject. It's a set of university lectures, best suited for those with some prior exposure to its themes. That Basic Books is hawking it as a sequel to Philip Howard's "The Death of Common Sense" reflects the follies of publishing, not of Wilson's pen.

Walter Olson, a senior fellow at The Manhattan Institute, is the author of "Litigation Explosion: What Happened When America Unleashed the Lawsuit," and "The Excuse Factory," to be published next month by the Free Press. His reviews and essays have been published in periodicals ranging from Reader's Digest to scholarly quarterlies.